The Queensland Parliament has now passed the Safe Night Out amendments, we have summarised the points of the bill below.

Amendments to the Criminal Code

The introduction of the ‘coward punch’ offence.

The offence of ‘unlawful striking causing death’ is introduced by the Bill, carrying a maximum penalty of life imprisonment and defined as a death caused by the striking to a person on their head or neck. The distinction between this new offence and the other homicide offences is that it expressly precludes the element of intention from its definition; meaning that defences such as provocation are unavailable. Further, the offence disenables the offender from relying on other commonly available defences such as the defence of accident or that of the prevention of recurrent insult.

Introducing stricter penalties for various offences

The ‘unlawful striking causing death’ offence also obliges the Court to order that an offender is sentenced to serve the lesser of 80% of their prison sentence or 15 years imprisonment before being permitted for apply for parole.

The offence relating to the serious assault against public officers is proposed, under the Bill, to mirror that of the assault against police officers. This means that where certain behaviours are exhibited in the process of the assault, such as biting or spitting at the officer, the offender is liable to a maximum prison sentence of 14 years rather than the previous 7 years.

Aggravation

The Bill introduces a new Chapter 35A to address the circumstances of aggravation in relation to particular offences. This amendment changes the way in which offender’s are able to claim the defence of mistake of fact in relation to intoxication, and introduces presumptive factors in relation to adverse affectation from intoxicating substances.

In addition to these changes to the Criminal Code, the Bill also alters the sentencing process for liquor-associated offences under the Penalties and Sentences Act. The major change is that the voluntary intoxication of an offender is proposed to be removed from the court’s consideration of mitigating factors in determining sentences. The Court is also required to order offenders to complete community service orders when convicted of certain offences committed when intoxicated and in a public place.

Amendments to the Liquor Act

A new definition of “unduly intoxicated”.

The contextual nature of the previous definition has gone, however it may be arguable that the behaviour is the result of the context in which it occurs. Importantly, the objective assessment (the ordinary person reference) has been removed. What we now have is a new concept – “noticeably affected”. Does this mean that if you can tell someone has been drinking (or has taken drugs) from their speech, balance, coordination or behaviour that they are UNDULY intoxicated? This would seem to be correct, which implies a worryingly low standard; the definition looks more like one for “intoxicated” rather than “unduly intoxicated”.

Introduction of “irresponsible” consumption of liquor.

The previous idea of “rapid or excessive” consumption of liquor will be replaced with the “irresponsible” consumption of liquor. This change applies to those parts of the legislation that regulate promotional practices.

Changes to RAMPs

New sections will allow the commissioner to require a licensee to amend its RAMP and provide the amended plan for approval. The commissioner can do this for single licences, classes of licences, or for all licensees within a safe night precinct or restricted area. The Bill also expands the guideline-making power to expressly refer to stipulating how a licensee should comply with their responsibilities under the Act; an example given being a guideline for how licensees should determining whether a person is unduly intoxicated.

Changes to restaurants

The changes relating to restaurant licences are quite ground-breaking; seeking to control these premises more closely in relation to compliance with their principal activity of serving meals. This is achieved by a combination of requirements applicable “throughout each trading day”. These include that most of the patrons for the business for that day must consume a meal; most of the licensed area of the premise is set up for dining; the kitchen must be open and ‘being used…for meal preparation’ for at least up to one hour before the end of the trading period; and that there are sufficient staff engaged in the preparation and service of meals.

Some of these matters are presently enforced through licence conditions (the second and third points). The others are new. It’s hard to know how effective the requirements will be in terms of the concern which has been expressed about restaurants operating as bars. “Trading day” and “trading period” are defined without reference to licensed trading hours, so a restaurant which opens for breakfast could take advantage of this patronage to satisfy the requirement that most of the patrons on a trading day consume a meal.

For some time it has been unclear whether the assessment of compliance with principal activity requirements should refer to the totality of trading or to a shorter period. For example, if a restaurant operated as a bar on a Friday afternoon for several hours, but on an overall assessment was primarily a meals business, it was arguably compliant. The new requirements will clarify that compliance is now assessed on daily basis; thus ending the speculation.

Interestingly, the present standard conditions on meals licences about the majority of the premises being set up for dining, and meals being available until 1 hour before close are stated not to apply during a function. This appears to have been omitted.

Last but by no means least is the limitation on access to extended trading hours for restaurants. The new provisions will only allow extended hours through until 1am. Restaurants with later trading will retain these through until 1 July 2015, after which they will revert to 1am.

We assume this provision will also apply to premises in the prepared food category.

Introduction of “Nightclub” licences

Although at present a nightclub business can be established under more than one licence category, the amendments will remove the “entertainment” principal activity category from the commercial other subsidiary on premises licence set, and place it into a category of its own – simply called a nightclub licence. The curious requirement in the present Act that the licence only authorises the sale of liquor to a person who is being entertained has been removed, and replaced with the same general requirement which applies to the other on-premises categories, that the licence only authorises liquor sales if the business complies with its principal activity, which presumably means that if entertainment is provided most of the time the licensee will be compliant.

A further requirement is that toilets must now be provided within the licensed premises; and these licences cannot be obtained for a vehicle.

Nightclub licensees will still be able to operate without entertainment prior to 5pm, but will be required to comply during that period with the new restaurant rules.

Adult Entertainment Permits

An application will require the consent of the local council, although the council may abstain. There is no stated recourse in the Bill if the Council rejects the proposal, meaning that it is likely that merits of judicial review of the Council’s decision is the relevant remedial option for unsuccessful applicants.

Extended Trading Hours

The moratorium will end as promised on 31 August. After that it appears that applications will be considered according to the same procedure and considerations as have applied in the past. One change is that if an approval is given despite an objection from Police, the Commissioner is obliged to publish reasons for the decision on the OLGR web site for a period of 3 months.

Public Safety and Amenity

There are a series of new provisions in a new Division 1A in Part 5 under the heading “Public Safety and Amenity”. They articulate a range of matters which the Commissioner must consider when deciding applications, and also clarify the ability to impose wide-ranging conditions on licences and other approvals such as when liquor can be sold, the type or quantity of liquor, responsible practices about service, supply and promotion of liquor, noise abatement measures, conditions about the structure of the premises and security arrangements.

Responsible Service, Supply and Promotion and Preservation of Amenity

A new Division (Division 1AA) is to be inserted in Part 6. It seems to merely collect and expand upon a number of elements of the existing legislation rather than creating new obligations. For example, a licensee is presently under an obligation to maintain a safe environment in and around the licensed premises, as stated in Section 148A(4). Under the amendments the obligation will be stated in a Section 142ZZB and will be expanded to include a requirement that the licensee “take all reasonable steps to ensure the use of the premises does not adversely affect the amenity of the area”.

The new Division also includes expanded provisions about unacceptable practices and promotions, and the restrictions on advertising. It includes provisions allowing the Commissioner to issue “compliance notices” to licensees directing that, for example, a particular advertising practice cease. There are offence provisions for failing to comply with the notice.

Mandatory ID Scanning

As expected, there are detailed provisions setting up the mandatory ID scanning system. All premises that trade after midnight in a safe night out precinct will be subject to the requirements. Other licences can be conditioned to require scanning, and would be thereafter subject to these provisions.

The requirement will be that a person must not be admitted to the premises unless their ID is scanned during the “regulated hours”, which are either the hours specified on a licence, or otherwise from 8pm through till close.

The scanning system, software, and database management system used by the licensee are all subject to detailed approval and licensing requirements, and there are extensive privacy provisions.

Banning notice information must be included in the database, and the scanning will detect a banned person, who must not be allowed entry to the premises.

The new provisions contemplate a licensee banning a person from their premises, and then sharing the ID information about the banned person with licensees linked by an ID scanning system.

Safe Night Precincts

Safe Night Precincts replace the trialled Drink Safe Precincts, and will be expanded to numerous precincts around the State. Each precinct may be overseen by an incorporated association referred to as a “local board”. Licensees within the relevant precinct must become members of the local board.

The new provisions will also allow for the creation of a public safety consultative committee to advise the local board. The Commissioner will appoint the members of the consultative committee, which can include Police, Local Government, Department, Transport and Community group representatives, very much along the lines of the existing DSP committees.

The local board will have the power to terminate the membership of a particular licensee, and the provisions create a procedure for this to occur. It’s unclear what the effect of the membership being terminated is on the licensee moving forward.

The Liquor and Gaming (Red Tape Reduction) and Other Legislation Amendment Bill 2013 will, among other things, make certain adjustmentsto the requirements with respect to approved managers. Most of the changes are achieved by adding to the existing approved manager provisions a requirement that in addition to being an approved manager the relevant person must also be an employee of the licensee. This is of significance when one considers that compliance with the approved manager requirements for many venues is often achieved using a director of the licensee company, or contracted third parties.

According to the explanatory notes, the intention of the amendment is "to ensure that an approved manager who is present at the premises must be employed in the capacity of an approved manager, not just performing other duties or present (sic) on the premises for social purposes". The amendment has broader implications however. The use of the term "employee" in the legislation has specific legal consequences, potentially excluding company directors who are not employed, as well as contractors. Some licensees use labour hire companies for the provision of personnel, including managers. Others have approved management agreements with third party service providers. These arrangements are unlikely to achieve compliance with the amended requirements.

Interestingly, the proposed amendments to the closure for unlawful trading provisions in Section 141 include an express reference to the conduct of the business by an approved manager employed not by the licensee, but by a third party with an approved management agreement. In these circumstances there will be no basis for the premises to be closed, but the licensee will still be non-compliant with the Section 155AD requirement that an approved manager employed by the licensee be present or reasonably available.

The approved manager register which has long been considered overly bureaucratic and unnecessary will be scrapped. The explanatory notes to the Bill very accurately describe the register as "simply an unnecessary administrative burden and duplication of existing employment records kept by licensees". However, it’s unlikely that any of the fines handed out to approved managers forgetting to sign off after their shift will be refunded.